The totality of the National Security Agency’s surveillance is daunting. The agency has collected the emails, phone calls, and Internet traffic of hundreds of millions of Americans and even more abroad. The agency has infiltrated forums, Facebook, even World of Warcraft. It has secured deals with most major phone carriers to collect customer information. The NSA has even gone so far as hacking companies like Google and Yahoo without their knowledge.
Ever since the full extent of their surveillance programs was leaked to the public by Edward Snowden, the NSA and the Obama administration have pointed to Section 215 of the USA PATRIOT Act, which allows the government to petition for the warrantless surveillance of a U.S. citizen after approval by a FISA court.
Early yesterday, however, a federal judge dealt a historic hit to the NSA, ruling Section 215 did not justify the NSA’s activities, handing the program its largest judicial blow yet. Noting that the amount of surveillance was “staggering,” Judge Gerard Lynch felt the NSA’s activities “[exceed] the scope of what Congress has authorized” and that the PATRIOT Act “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.”
While these massive stores of data held by the NSA are ruled illegal, it’s also important to note they aren’t particularly useful and might even hurt U.S. interests. So claims William Binney, an NSA official turned whistleblower who has spent more than three decades working for the agency. Repeating claims he’s made before, Binney told a group of security contractors this week that the NSA suffers from “bulk data failure,” meaning agents often fail to find information that could prevent an attack because their total data is too large to organize.
While these massive stores of data held by the NSA are ruled illegal, it’s also important to note they aren’t particularly useful.
Even though—by Binney’s estimates—the NSA can access the records of four billion people across the globe, it has failed to stop such attacks as the Boston Marathon bombing in 2013, the Charlie Hebdo attacks last January, and an attempted attack on a “Draw Muhammad” contest in Texas just this week.
This would put the NSA’s mass surveillance program along a trend of controversial attempts by the federal government to make the United States safer, only to further endanger us to terrorist attacks.
The Iraq War is likely the most well-known. Less than three years after the beginning of the war, a formal assessment of threats against the United States found radicalized terrorism had spread, not diminished, largely in response to the bungled invasion of Iraq. The report, voicing the agreement of 16 intelligence agencies, went against the narratives of both the Bush administration and Congress, which claimed at the time that we were winning the global war on terrorism.
Likewise, the decade-long torture campaign was advertised as a vital component of intelligence gathering in fighting groups like Al-Qaeda. Former CIA agents said torture techniques, such as waterboarding, were a necessary evil, a brutal tactic that nonetheless led to saving American lives.
In 2008, the Republican primary candidates felt the torture debate could be summed up by an episode of 24, hailing the arguable heroism of the quite fictional Jack Bauer. Tom Tancredo, the former Republican congressman from Colorado, said: “We’re wondering about whether water-boarding would be a—a bad thing to do? I’m looking for Jack Bauer at that time, let me tell you.” His statement was reportedly met with applause.
Shortly before leaving office, Vice President Dick Cheney even went so far as to call torture a moral duty, stating: “I think it would have been unethical or immoral for us not to do everything we could in order to protect the nation against further attacks like what happened on 9/11.”
Much like the Iraq War before it, however, the torture program has been proven to not only be harmful to the United States’ image around the world, it actually yielded little to no actionable information to help intelligence or defense agencies.
The CIA waged a campaign of dubious legality and wrongheaded priorities, permanently damaging the reputation of the United States, and we gained nothing for it.
According to the “Torture Report” released last December, the decade-long program of “enhanced interrogation techniques” did not serve the vital purpose Cheney, the GOP, and the CIA claimed it did. According to the Senate Intelligence Committee, officers of the CIA “assessed that the most effective method for acquiring intelligence from detainees…was to confront the detainees with information already acquired by the intelligence community.”
In other words, the CIA waged a campaign of dubious legality and wrongheaded priorities, permanently damaging the reputation of the United States, and we gained nothing for it.
This is why it’s so vital to begin asking whether the actions of the NSA are not only immoral and unconstitutional but—like the Iraq War and torture program before it—also harmful to U.S. interests. As William Binney fears, the mass violation of our privacy rights has not exactly prevented attacks that, in retrospect, should have been fairly easy to halt.
The Tsarnaev brothers weren’t exactly masterminds about their 2013 attack on the Boston Marathon, and somehow the NSA still missed Tamerlan’s frequent visits to bomb-making instructions on Al-Qaeda’s official newsletter, Inspire, or his viewings of terrorist propaganda on YouTube. Even when Russia practically begged the FBI to investigate Tamerlan and Dzhokhar (who is currently awaiting the possibility of a death sentence), the federal government missed the opportunity to act.
This week invited yet another attempt at American lives. Though less successful than the Tsarnaev brothers, two supposed members of ISIS were shot and killed by police after attempting to attack a Muhammad art contest in Garland, Texas, making it the first incident on American soil for which the self-proclaimed Islamic State has taken responsibility.
One of the attackers, Elton Simpson, was a prodigious Twitter user, frequently communicating and promoting ISIS fighters and propagandists. Shortly before the attack, Simpson even tweeted #texasattack and professed his allegiance to ISIS leader Abu Bakr Al-Baghdadi. The failure to prevent the attack becomes even more astonishing when you realize Simpson was charged with lying to officials about a 2011 trip to Somalia he took, where he likely trained with terrorists.
These are the sorts of obvious red flags Binney is fearing the NSA misses by simply taking too wide a swath of data. Edward Snowden is prone to agree with him, saying the wasted resources of the bulk collection are preventing NSA agents from preventing real attacks. “We’re monitoring everybody’s communications, instead of suspects’ communications,” the former contractor said last year. “That lack of focus has caused us to miss leads that we should’ve had.”
The mass violation of our privacy rights has not exactly prevented attacks that, in retrospect, should have been fairly easy to halt.
This should bring us to the same questions raised by the uselessness of torture or the backlash against the Iraq War: If the federal government is doing something in the name of U.S. interests that actually harms U.S. interests, why is the government so intent on doing it?
Even in the face of yesterday’s ruling, it is likely the NSA will fight an existential battle to retain its right to mass surveillance, an experimental solution to a problem the CIA and the Pentagon aren’t fully capable of answering. Despite all the jokes about the NSA dropping in on every single conversation Americans have, the NSA is largely lost and confused over what to do with its massive power.
It’s time the NSA realizes the harm its doing before an official government report simply confirms what we all know is already true.
Gillian Branstetter is a social commentator with a focus on the intersection of technology, security, and politics. Her work has appeared in the Washington Post, Business Insider, Salon, the Week, and xoJane. She attended Pennsylvania State University. Follow her on Twitter @GillBranstetter.
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